Citation NR: 9615966
Decision Date: 06/05/96 Archive Date: 06/18/96
DOCKET NO. 93-27 830 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to an increased evaluation for the veteran's
service-connected anxiety disorder, currently evaluated as 50
percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. W. Lemoine, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1941 to
July 1944.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1992 rating decision of the
Manchester, New Hampshire, Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied the
veteran's claim seeking entitlement to an increased
evaluation for his service-connected anxiety disorder,
evaluated as 50 percent disabling. We note the case was
previously before the Board in November 1995 and was remanded
to the RO for additional evidentiary development, which has
been accomplished.
The Board notes that the veteran served during a period of
war and that his increased rating claim also presents a claim
for non-service connected pension benefits under 38 C.F.R.
§§ 3.151(a), 4.17 (1995). As that issue is not inextricably
intertwined with the issue currently before us, it is
referred to the RO for appropriate consideration. See Kellar
v. Brown, 6 Vet.App. 157 (1994).
Furthermore, the Board notes that the U.S. Court of Veterans
Appeals has recently ruled that the Board does not have the
authority to address the issue of entitlement to an
extraschedular evaluation in the first instance. See Floyd
v. Brown, No. 92-970 (U.S. Vet. App. Apr. 17, 1996). That
issue has not been addressed by the RO, and the Board refers
that issue to the RO to consider whether the veteran’s
contentions raise the issue of entitlement to extraschedular
evaluation pursuant to 38 C.F.R. § 3.321(b)(1) and to take
such action as may be appropriate.
REMAND
The veteran contends that he is entitled to a 70 percent
evaluation for his service-connected anxiety disorder. The
veteran and his representative argue that the veteran has not
worked since 1983; he has a lifetime of sporadic employment;
and the recent social and industrial survey concluded he was
not employable. They contend that, as the veteran is unable
to maintain employment because he cannot tolerate stress, an
increased evaluation is warranted. The Board construes those
contentions to be, in essence, a claim for a total rating
based on individual unemployability under 38 C.F.R. § 4.16
(1995). In view of the recent decision of the U.S. Court of
Veterans Appeals (Court) in Bagwell v. Brown, No. 95-238
(U.S. Vet.App. May 28, 1996), remand to the RO is now
required in order for the RO to adjudicate the issue of
entitlement to a total disability rating based on individual
unemployability under 38 C.F.R. § 4.16.
Accordingly, in order to assure the appellant due process of
law, the case is REMANDED to the RO for the following:
1. Determine whether the veteran has
received further inpatient or outpatient
treatment for his service-connected
psychiatric disability since January
1996. Obtain copies of any such
treatment records and associate them with
the veteran’s claims folder.
2. Review the veteran’s claim for an
increased rating for his service-
connected anxiety disorder, and
adjudicate the additional issue of
entitlement to a total rating based on
individual unemployability (TDIU)
pursuant to 38 C.F.R. § 4.16. If the
determination on the TDIU claim is
adverse to the veteran, provide him and
his representative with a notice of the
determination and with notice of his
appeal rights. If the veteran files a
notice of disagreement with the issue of
entitlement to TDIU, and if the rating on
the increased rating claim remains
adverse to the veteran, provide him and
his representative with a Supplemental
Statement of the Case that discusses
fully all applicable laws and regulations
and provides reasons and bases for the
decision. Notify the veteran that he
must file a substantive appeal with
respect to any issue(s) not included in a
previous Statement of the Case or
Supplemental Statement of the Case.
Accord the veteran an appropriate period
for response.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional medical information and
to accord the veteran due process of law. No inference
should be drawn regarding the final disposition of the claim
as a result of this action.
J. SHERMAN
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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